Corporate Advocacy Program: The best way to manage and repair your business reputation. Hiding negative complaints is only a Band-Aid. Consumers want to see how businesses take care of business. All businesses will get complaints. How those businesses take care of those complaints is what separates good businesses from bad businesses.

Corporate Advocacy Program: The best way to manage and repair your business reputation. Hiding negative complaints is only a Band-Aid. Consumers want to see how businesses take care of business. All businesses will get complaints. How those businesses take care of those complaints is what separates good businesses from bad businesses.

AUTHOR: Tim - (U.S.A.)

I couldn't have hoped for a more novice understanding of contract law upon which to raise a rebuttal. Keith, I can't speak for how they do it in Canada, but here's how it goes in the U.S:

1) "You ordered something.(Entered into a verbal contract)."

You got that part right.

what you fail to ascertain is that a term of that contract was that the soup (the restaurant's "consideration") was required to be completely vegetarian, per the offeror's assurance as a result of the offeree's insistance.

2) "It arrived (1st part on contract fulfilled)."

WRONG!

Maybe you're not far enough in your 1st year contracts course to know about the "perfect tender rule." This common law rule, retained by the Uniform Commercial Code, requires that the seller's consideration conform PERFECTLY (in a "single lot delivery") to the terms of the original agreement, which, in this case, was a bowl of soup that would conform to the trade definition of "comletely vegetarian."

If the perfect tender rule weren't enough to save our consumer under either the common law or the UCC, there is an express warranty in place. By assuring that the soup was "completely vegetarian" the server, as the agent of the restaurant, gave a warranty that the soup was, in fact, completely vegetarian. When the soup failed to conform to that warranty, the consumer had a valid cause of action under both the common law and the UCC.

Even if the express warranty fails, the server gave an "implied warranty of fitness for a particular purpose." The server knew that the patron wanted only a "completely vegetarian" dish and warranted the ultimate product as such, the patron relied on said assurance, erego said warranty.

Warranty breached, cause of action lies.

3) "You ate it. (meaning you accepted the good delivered)"

In some, if not most circumstances this may be correct. But, where the consumer cannot ascertain the defect in tender through reasonable inspection (as would be the case with a bowl of soup), treating the goods as though they have been accepted does not negate the power of the perfect tender rule.

Improper tender = right to reject. Improper tender not readily ascertainable through reasonable inspection = right to revoke acceptance. Use of goods that are in violation of warranty = warranty action.

4) "Now you want to be reimbursed???? Why? you were not a victim of fraud.(Someone who WILFULLY misleads you). So you get 2 things... Jack and s**t"...

No, YOU get two things... WRONG AND WRONG!

First, there are several other defenses to contract performance (i.e. duress, impracticability, impossibility, illegality, etc.) as well as a myriad of excuses ( i.e. breach of warranty, statute of frauds, etc.).

Second, Since you have (albeit rightfully) decided to make this a contract issue, let me inform you of a VERY basic principle of contract law:

STRICT LIABILITY! Need it again? STRICT LIABILITY!!!

Don't know what strict liability means yet? Here it is in a nutshell: in a contract action (as opposed to a tort or criminal action) it doesn't matter WHY something went wrong (WHY the K was breached), it only matters THAT it went wrong (THAT the K was breached). Under contract law, there is no requirement of culpability (fault). The only concern is that the contract was breached, which, in this case, it was.

Under contract law there is ABSOLUTELY no requirement of fraud to prove breach. The only prerequisite to compensation is that the contract, or a warranty provision, was breached. So long as that element is satisfied, the plaintiff wins.

The element of fraud is used only when the plaintiff or defendant wants to prove that a valid contract never existed in the first place. In this case the contract itself (which was valid), as well as an express warranty, and an impled warranty, were all breached. "Fraud" is completely irrelevant.

Judgment (without an "e" after the "g") for Plaintiff. I rest my case.

Keith, wait another year or so before you start deciding reports as a matter of law.

AUTHOR: Tim - (U.S.A.)

I couldn't have hoped for a more novice understanding of contract law upon which to raise a rebuttal. Keith, I can't speak for how they do it in Canada, but here's how it goes in the U.S:

1) "You ordered something.(Entered into a verbal contract)."

You got that part right.

what you fail to ascertain is that a term of that contract was that the soup (the restaurant's "consideration") was required to be completely vegetarian, per the offeror's assurance as a result of the offeree's insistance.

2) "It arrived (1st part on contract fulfilled)."

WRONG!

Maybe you're not far enough in your 1st year contracts course to know about the "perfect tender rule." This common law rule, retained by the Uniform Commercial Code, requires that the seller's consideration conform PERFECTLY (in a "single lot delivery") to the terms of the original agreement, which, in this case, was a bowl of soup that would conform to the trade definition of "comletely vegetarian."

If the perfect tender rule weren't enough to save our consumer under either the common law or the UCC, there is an express warranty in place. By assuring that the soup was "completely vegetarian" the server, as the agent of the restaurant, gave a warranty that the soup was, in fact, completely vegetarian. When the soup failed to conform to that warranty, the consumer had a valid cause of action under both the common law and the UCC.

Even if the express warranty fails, the server gave an "implied warranty of fitness for a particular purpose." The server knew that the patron wanted only a "completely vegetarian" dish and warranted the ultimate product as such, the patron relied on said assurance, erego said warranty.

Warranty breached, cause of action lies.

3) "You ate it. (meaning you accepted the good delivered)"

In some, if not most circumstances this may be correct. But, where the consumer cannot ascertain the defect in tender through reasonable inspection (as would be the case with a bowl of soup), treating the goods as though they have been accepted does not negate the power of the perfect tender rule.

Improper tender = right to reject. Improper tender not readily ascertainable through reasonable inspection = right to revoke acceptance. Use of goods that are in violation of warranty = warranty action.

4) "Now you want to be reimbursed???? Why? you were not a victim of fraud.(Someone who WILFULLY misleads you). So you get 2 things... Jack and s**t"...

No, YOU get two things... WRONG AND WRONG!

First, there are several other defenses to contract performance (i.e. duress, impracticability, impossibility, illegality, etc.) as well as a myriad of excuses ( i.e. breach of warranty, statute of frauds, etc.).

Second, Since you have (albeit rightfully) decided to make this a contract issue, let me inform you of a VERY basic principle of contract law:

STRICT LIABILITY! Need it again? STRICT LIABILITY!!!

Don't know what strict liability means yet? Here it is in a nutshell: in a contract action (as opposed to a tort or criminal action) it doesn't matter WHY something went wrong (WHY the K was breached), it only matters THAT it went wrong (THAT the K was breached). Under contract law, there is no requirement of culpability (fault). The only concern is that the contract was breached, which, in this case, it was.

Under contract law there is ABSOLUTELY no requirement of fraud to prove breach. The only prerequisite to compensation is that the contract, or a warranty provision, was breached. So long as that element is satisfied, the plaintiff wins.

The element of fraud is used only when the plaintiff or defendant wants to prove that a valid contract never existed in the first place. In this case the contract itself (which was valid), as well as an express warranty, and an impled warranty, were all breached. "Fraud" is completely irrelevant.

Judgment (without an "e" after the "g") for Plaintiff. I rest my case.

Keith, wait another year or so before you start deciding reports as a matter of law.

AUTHOR: Tim - (U.S.A.)

I couldn't have hoped for a more novice understanding of contract law upon which to raise a rebuttal. Keith, I can't speak for how they do it in Canada, but here's how it goes in the U.S:

1) "You ordered something.(Entered into a verbal contract)."

You got that part right.

what you fail to ascertain is that a term of that contract was that the soup (the restaurant's "consideration") was required to be completely vegetarian, per the offeror's assurance as a result of the offeree's insistance.

2) "It arrived (1st part on contract fulfilled)."

WRONG!

Maybe you're not far enough in your 1st year contracts course to know about the "perfect tender rule." This common law rule, retained by the Uniform Commercial Code, requires that the seller's consideration conform PERFECTLY (in a "single lot delivery") to the terms of the original agreement, which, in this case, was a bowl of soup that would conform to the trade definition of "comletely vegetarian."

If the perfect tender rule weren't enough to save our consumer under either the common law or the UCC, there is an express warranty in place. By assuring that the soup was "completely vegetarian" the server, as the agent of the restaurant, gave a warranty that the soup was, in fact, completely vegetarian. When the soup failed to conform to that warranty, the consumer had a valid cause of action under both the common law and the UCC.

Even if the express warranty fails, the server gave an "implied warranty of fitness for a particular purpose." The server knew that the patron wanted only a "completely vegetarian" dish and warranted the ultimate product as such, the patron relied on said assurance, erego said warranty.

Warranty breached, cause of action lies.

3) "You ate it. (meaning you accepted the good delivered)"

In some, if not most circumstances this may be correct. But, where the consumer cannot ascertain the defect in tender through reasonable inspection (as would be the case with a bowl of soup), treating the goods as though they have been accepted does not negate the power of the perfect tender rule.

Improper tender = right to reject. Improper tender not readily ascertainable through reasonable inspection = right to revoke acceptance. Use of goods that are in violation of warranty = warranty action.

4) "Now you want to be reimbursed???? Why? you were not a victim of fraud.(Someone who WILFULLY misleads you). So you get 2 things... Jack and s**t"...

No, YOU get two things... WRONG AND WRONG!

First, there are several other defenses to contract performance (i.e. duress, impracticability, impossibility, illegality, etc.) as well as a myriad of excuses ( i.e. breach of warranty, statute of frauds, etc.).

Second, Since you have (albeit rightfully) decided to make this a contract issue, let me inform you of a VERY basic principle of contract law:

STRICT LIABILITY! Need it again? STRICT LIABILITY!!!

Don't know what strict liability means yet? Here it is in a nutshell: in a contract action (as opposed to a tort or criminal action) it doesn't matter WHY something went wrong (WHY the K was breached), it only matters THAT it went wrong (THAT the K was breached). Under contract law, there is no requirement of culpability (fault). The only concern is that the contract was breached, which, in this case, it was.

Under contract law there is ABSOLUTELY no requirement of fraud to prove breach. The only prerequisite to compensation is that the contract, or a warranty provision, was breached. So long as that element is satisfied, the plaintiff wins.

The element of fraud is used only when the plaintiff or defendant wants to prove that a valid contract never existed in the first place. In this case the contract itself (which was valid), as well as an express warranty, and an impled warranty, were all breached. "Fraud" is completely irrelevant.

Judgment (without an "e" after the "g") for Plaintiff. I rest my case.

Keith, wait another year or so before you start deciding reports as a matter of law.

AUTHOR: Tim - (U.S.A.)

I couldn't have hoped for a more novice understanding of contract law upon which to raise a rebuttal. Keith, I can't speak for how they do it in Canada, but here's how it goes in the U.S:

1) "You ordered something.(Entered into a verbal contract)."

You got that part right.

what you fail to ascertain is that a term of that contract was that the soup (the restaurant's "consideration") was required to be completely vegetarian, per the offeror's assurance as a result of the offeree's insistance.

2) "It arrived (1st part on contract fulfilled)."

WRONG!

Maybe you're not far enough in your 1st year contracts course to know about the "perfect tender rule." This common law rule, retained by the Uniform Commercial Code, requires that the seller's consideration conform PERFECTLY (in a "single lot delivery") to the terms of the original agreement, which, in this case, was a bowl of soup that would conform to the trade definition of "comletely vegetarian."

If the perfect tender rule weren't enough to save our consumer under either the common law or the UCC, there is an express warranty in place. By assuring that the soup was "completely vegetarian" the server, as the agent of the restaurant, gave a warranty that the soup was, in fact, completely vegetarian. When the soup failed to conform to that warranty, the consumer had a valid cause of action under both the common law and the UCC.

Even if the express warranty fails, the server gave an "implied warranty of fitness for a particular purpose." The server knew that the patron wanted only a "completely vegetarian" dish and warranted the ultimate product as such, the patron relied on said assurance, erego said warranty.

Warranty breached, cause of action lies.

3) "You ate it. (meaning you accepted the good delivered)"

In some, if not most circumstances this may be correct. But, where the consumer cannot ascertain the defect in tender through reasonable inspection (as would be the case with a bowl of soup), treating the goods as though they have been accepted does not negate the power of the perfect tender rule.

Improper tender = right to reject. Improper tender not readily ascertainable through reasonable inspection = right to revoke acceptance. Use of goods that are in violation of warranty = warranty action.

4) "Now you want to be reimbursed???? Why? you were not a victim of fraud.(Someone who WILFULLY misleads you). So you get 2 things... Jack and s**t"...

No, YOU get two things... WRONG AND WRONG!

First, there are several other defenses to contract performance (i.e. duress, impracticability, impossibility, illegality, etc.) as well as a myriad of excuses ( i.e. breach of warranty, statute of frauds, etc.).

Second, Since you have (albeit rightfully) decided to make this a contract issue, let me inform you of a VERY basic principle of contract law:

STRICT LIABILITY! Need it again? STRICT LIABILITY!!!

Don't know what strict liability means yet? Here it is in a nutshell: in a contract action (as opposed to a tort or criminal action) it doesn't matter WHY something went wrong (WHY the K was breached), it only matters THAT it went wrong (THAT the K was breached). Under contract law, there is no requirement of culpability (fault). The only concern is that the contract was breached, which, in this case, it was.

Under contract law there is ABSOLUTELY no requirement of fraud to prove breach. The only prerequisite to compensation is that the contract, or a warranty provision, was breached. So long as that element is satisfied, the plaintiff wins.

The element of fraud is used only when the plaintiff or defendant wants to prove that a valid contract never existed in the first place. In this case the contract itself (which was valid), as well as an express warranty, and an impled warranty, were all breached. "Fraud" is completely irrelevant.

Judgment (without an "e" after the "g") for Plaintiff. I rest my case.

Keith, wait another year or so before you start deciding reports as a matter of law.

AUTHOR: Keith - (Canada)

SUBMITTED: Wednesday, October 20, 2004

POSTED: Wednesday, October 20, 2004

Lets get this right. You ordered something.(Entered into a verbal contract). It arrived (1st part on contract fulfilled) You ate it. (meaning you accepted the good delivered) Now you want to be reimbursed???? Why? you were not a victim of fraud.(Someone who WILFULLY misleads you). So you get 2 things... Jack and s**t

Corporate Advocacy Program: The best way to manage and repair your business reputation. Hiding negative complaints is only a Band-Aid. Consumers want to see how businesses take care of business. All businesses will get complaints. How those businesses take care of those complaints is what separates good businesses from bad businesses.